Developments
Developments Correspondents
Daphne Barak-Erez (Israel), Rodrigo Correa (Chile), Mark Elliott (United Kingdom), Simon Evans
(Australia/New Zealand), Tania Groppi (Italy), Susi Dwi Harijianti (Indonesia), Raj Kumar
(India/Asia), Christine Langenfeld (Germany), Jibong Lim (Korea), Wanda Mastor (France),
Shigenori Matsui (Japan), Anashri Pillay (South Africa), Beate Rudolf (European Union/
European Court of Human Rights), David Schneiderman (Canada), Benny Tai (China/
Hong Kong), Caroline Taube (Scandinavia/Baltic States), Li-ann Thio (Singapore), Alexei
Trochev (Russia/CIS), Renata Uitz (Hungary)
Germany: A slow death for subsidiarity?
Greg Taylor*
The subsidiarity principle—article 72 (2) of German Basic Law revised—appropriateness of subsidiarity
for judicial review
1. Introduction
In an earlier note in this journal,1 I described Germany’s attempt to translate
into a justiciable rule of law the subsidiarity principle—whereby, aside from
areas that fall within its exclusive competence, the federal government intervenes only when its action will be more effective than action taken at the
regional or local level. This was done by incorporating the principle into article
72 (2) of the Basic Law alongside an express authorization2 to the Federal
Constitutional Court to strike down laws that did not comply with it. The
German version of the principle of subsidiarity, as expressed in article 72 (2) of
the Basic Law as amended in 1994, required the Court to determine whether
legislation under federal concurrent powers was necessary “in order to bring
about equivalent living standards within the Federation,” or to maintain “legal
or economic unity in the interests of the whole state.”3 I expressed doubts about
whether the principle was appropriate for judicial enforcement. Since then,
however, the German Federal Constitutional Court has done its best to prove
* Associate professor, Faculty of Law, Monash University, Melbourne, Australia. Email: Greg.Taylor@law.
monash.edu.au
1
Greg Taylor, Germany: The Subsidiarity Principle, 4 INT’L J. CONST. L. (I•CON) 115 (2006).
2
Article 93 (1) (2a).
3
For the source of this text and the translation, see Taylor, supra note 1, at 115, 116 nn.3–4.
© The Author 2009. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected].
I•CON, Volume 7, Number 1, 2009, pp. 139–154 doi:10.1093/icon/mon032
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me wrong.4 The Court’s decisions have been so effective in enforcing the principle of subsidiarity against the federal legislature that the latter, seeing its
powers greatly hampered, enacted a further constitutional amendment, which
came into force on September 1, 2006,5 restricting the operation of the subsidiarity principle only to certain areas of lawmaking. This may be the first step
toward relegating the principle of subsidiarity, once more, to the realm of mere
pious aspiration, where it had dwelt from 1949 until 1994, when the amendment that made it justiciable came into effect.
The first adjudication under article 72 (2) in its judicially enforceable form
took place only six years ago, in October 2002.6 How did the subsidiarity principle come so quickly to be on the decline? What does this say about the state of
German federalism? What thinking lay behind the 2006 decision to restrict
enforcement of the principle, neither abolishing it completely nor indicating to
the Court, by an appropriate constitutional amendment, that the hurdles
erected by the case law were too high?
2. Changes and background
Article 72 (2), in the form in which it existed from 1994 until its amendment
in 2006, stated that federal concurrent legislative powers could be exercised
only if federal legislation were necessary in the sense mentioned earlier. The
1994 amendments made it quite clear that this provision was to be fully justiciable. From then on, federal legislation had to pass the subsidiarity test of article 72 (2) in the Federal Constitutional Court; moreover, it had to be relevant
to one of the subjects assigned to the federation by the catalogue of legislative
powers.
The 2006 amendments leave the text of article 72 (2), as quoted above,
unchanged. However, that text is now prefaced by the proviso that the standards laid down by article 72 (2) are to be applied only to ten (of the thirty-two)
federal powers.7 To this list should be added the provision of article 105 (2),
under which the federation has concurrent power over taxes if it is entitled to
all or part of the proceeds or if the test laid down in article 72 (2) is satisfied,
producing a total of eleven (or perhaps ten-and-a-half) fields in which it is still
applicable.
4
I was in good company; see the discussion in Ulrich Häde, Zur Föderalismusreform in Deutschland
[On the Federalism Reform in Germany], JURISTENZEITUNG [JZ] 930, 932 (2006).
5
Gesetz, Aug. 31, 2006, BGBl. I at 2034ff.
6
Geriatric Care Givers Case, BVerfGE 106, 62 (2002).
Article 72 (2) now begins, “The Federation shall have the right to legislate on matters falling
within clauses 4, 7, 11, 13, 15, 19 a, 20, 22, 25 and 26 of paragraph (1) of Article 74,” before
proceeding with the earlier text. Full text of the German Basic Law in English available at http://
www.bundestag.de/interakt/infomat/fremdsprachiges_material/downloads/ggEn_download.pdf.
7
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Germany: A slow death for subsidiarity?
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Needless to say, the powers listed in article 74 are not all of equal importance. One of the most important, economic affairs, remains subject to the
restrictions laid down in article 72 (2). On the other hand, perhaps the most
important federal power—civil and criminal law and procedure (paragraph
i)—which supports the major civil and criminal codes that are the centerpiece
of German law, has been excluded from article 72 (2). The other powers
remaining under article 72 (2) are of moderate to small importance. They
are:
(iv): rights of residence of noncitizens;
(vii): public welfare;
(xiii): educational and training grants, and the promotion of research;
(xv): expropriation for public purposes;
(xixA): economic aspects of hospitals;
(xx): food law;
(xxii): road traffic and motor transport;
(xxv): the private law liability of the state;
(xxvi): artificial insemination, genetic modification, and similar topics.8
The exclusions include—in addition to civil and criminal law—labor law
([xii]) and land law ([xviii]); moreover, all exclusive federal powers (those listed
in article 73) remain exempt from the subsidiarity test, as was always the case,
of course, since legislation under an exclusive federal power by definition cannot
be subjected to any test asking whether it would be better enacted by the states.
As a result of other changes in 2006, there are now seventeen heads of exclusive
federal power in article 73, including fields as important and varied as post and
telecommunications, citizenship, foreign affairs, and nuclear energy.
Another change made in 2006 involved a new article 72 (3),9 which enumerates six subject matters of lesser importance (such as university admissions
and degrees and the protection of nature) on which the federation has the right
to legislate, although the states retain the right to enact divergent legislation.
Whichever government’s legislation is enacted most recently prevails. This
means that the federal legislature may decide whether to accept any state
8
In translating from the German, I have had some assistance from the translation (now slightly
out of date) published at the official Web site of the German Bundestag, supra note 7, but have
substituted my own wording as necessary in the interests of clarity and brevity.
9
For an explanation in English of article 72 (3), see Rudolf Hrbek, The Reform of German Federalism:
Part I 3 EUR. CONST. L. REV. (EUCONST) 225, 236f. (2007). See also Oliver Klein & Karsten Schneider,
Artikel 72 GG n.F. im Kompetenzgefüge der Föderalismusreform [Article 72 of the Basic Law as Amended
in the System of Legal Powers Under the Reform of Federalism], DEUTSCHE VERWALTUNGSBLÄTTER [DVBL.]
1549, 1552 (2006); Michael Nierhaus & Sonja Rademacher, Die große Staatsreform als Ausweg aus
der Föderalismusfalle [The Great Constitutional Reform as an Escape Hatch from the Federalism Trap],
9 LANDES- UND KOMMUNALVERWALTUNG [LKV] 385, 388, 391 (2006); Martin Stock, Konkurrierende
Gesetzgebung, postmodern: Aufweichung durch “Abweichung”? [Concurrent Legislation, Post-Modern
Style: Flexibility Through “Deviation”?], 21 ZEITSCHRIFT FÜR GESETZGEBUNG [ZG] 226, 235 (2006).
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variations and, for that matter, states may decide not to accept federal legislation. It is not surprising that these fields are also not included among those
amenable to the test laid down by article 72 (2); in these areas, the states have
an alternative means of ensuring the desired degree of subsidiarity, namely, by
enacting their own legislation. In effect, the locus of decision making about
subsidiarity has shifted in these fields from the Court to state legislatures.
A significant limitation on the applicability of the subsidiarity principle clearly
has been established. Before examining the case law that forms the background
to these changes, it is worth considering the political context. Under article 79
(2), the Basic Law can be amended (with certain exclusions not relevant here) by
a two-thirds majority of both houses of the Federal Parliament; the upper house,
the Bundesrat, consists of delegations from the state governments. In 2003,
after years of groundwork, the Commission for the Modernization of the Federal
System (whose name in German yields the acronym KoMbO)10 was formed.
KoMbO was co-chaired by Franz Müntefering, a leading member of the federal
Social Democrat party, and Edmund Stoiber, a member of the principal conservative party, who was then premier of Bavaria. KoMbO was the scene of a great
deal of hard thinking and even harder horse-trading about desirable reforms.
The states wanted more power; the federal government wanted to remove various obstacles to the efficient exercise of its own powers; all sides sought to streamline decision-making processes and, in particular, to ensure that each level of
government could operate with less interference from the other. In the end,
KoMbO was unable to reach agreement, concluding, in late 2004, without the
hoped-for set of joint proposals. But agreement had been reached on a number of
key points, and negotiations proceeded until federal general elections were held
on September 18, 2005, and—for only the second time in German postwar history—a grand coalition was formed of the two major parties that had co-chaired
KoMbO, under the chancellorship of Christian Democrat parliamentary leader
Angela Merkel. Excluded from this government were only the three smaller parties represented in the lower house, the Bundestag.
Thus, from late 2005 to the time of this publication, the federal government
has been made up of somewhat disparate elements; still, whenever it was able
to reach agreement internally, it has commanded a huge majority in the
Bundestag—more than the two-thirds required for the amendment of the Basic
Law. After state elections in the first half of 2006 had changed the composition
of the state governments, and thus of the Bundesrat, the federal government’s
political allies in the states had a two-thirds majority there as well.11 As part of
10
Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung, or “KoMbO.” See Hans-Günter Henneke, KoMbO 2004—ein Werkstattbericht zur Föderalismusreform [KoMbO 2004—A Report from the Workshop of Federalism Reform], NIEDERSÄCHSISCHE
VERWALTUNGSBLÄTTER [NDSVBL.] 250, 253 (2004).
11
Irene Kesper, Reform des Föderalismus in der Bundesrepublik Deutschland [Reform of Federalism in the
Federal Republic of Germany], NIEDERSÄCHSISCHE VERWALTUNGSBLÄTTER [NDSVBL.] 145, 146 (2006).
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Germany: A slow death for subsidiarity?
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the coalition agreement, KoMbO’s recommendations were resuscitated in a
slightly amended form, the main differences (unrelated to article 72 [2]) that
had prevented agreement were ironed out, and, with the backing of the coalition, the amendments were assured of success in parliament.12 The result were
far-reaching amendments due to the resounding majority enjoyed by the
coalition.
3. The case law
My earlier note was written shortly after the first case under the new justiciable
version of article 72 (2) had been decided. While there were brief references to later
developments and, in particular, to the Junior Professors case,13 which proved to be
crucial, I did not foresee the effect that the case law was to have in convincing the
federal government of the need to water down the subsidiarity test.
In various post-1994 cases, the Federal Constitutional Court elaborated criteria for the judicial determination of whether the subsidiarity test was satisfied. In the Geriatric Care Givers case,14 which was the subject of my earlier note,
the Court started off mildly. It concluded that the few provisions of the challenged law that did not meet the test of article 72 (2) were also not supported
by any of the concurrent legislative powers in article 74. In other words, there
had yet to be a case in which article 72 (2) had been determinative. However,
four cases from March 2004 to January 2006 were to change that picture.
First, in the Dangerous Dogs case,15 the Court invalidated under article 72
(2) a federal law that added criminal sanctions to the various state laws on
12
In the Bundestag the vote was slightly closer than might have been expected, as sixteen backbenchers from the governing coalition crossed the floor and voted against the proposals. In the end, 410
votes were need for the two-thirds majority, and the proposal obtained 428: Bundestag, Debates,
30 June 2006, pp. 4295-4298. In the Bundesrat, fourteen of the sixteen states approved: Bundesrat,
Debates, 7 July 2006, p. 222.
There was some critical commentary on the making of a deal behind the scenes and consequent lack
of effective parliamentary debate. See, e.g., Christoph Degenhart, Die Neuordnung der Gesetzgebungskompetenzen durch die Föderalismusreform [The Restructuring of Legislative Powers in the Federalism
Reform], NEUE ZEITSCHRIFT FÜR VERWALTUNGSRECHT [NVWZ] 1209, 1215 (2006). There is certainly something in this criticism; however, given the rigid discipline of modern parliamentary parties, it is hard
to know how else success might be achieved, given that the requirements for the amendment of the
Basic Law involve parliamentary votes. A wider-ranging criticism might be based on the fact that the
German people are passive spectators while their Constitution is being amended. However, Australian
constitutional history suggests that other difficulties may arise from the involvement of the people in
the process for amending the constitution.
13
BVerfGE 111, 226 (2004). In my earlier note I referred to this as the University Professors case.
Here I adopt the name by which the case has become more commonly known in Germany.
14
BVerfGE 106, 62 (2002).
15
BVerfGE 110, 141 (2004).
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vicious dogs. As these laws were not uniform, the federal law’s effects were not
uniform and, thus, the Court quite rightly concluded that the federal law could
not be justified by a need for uniformity. That decision is hard to quarrel with
given the text of article 72 (2) and does not seem to have caused the federation
much alarm. The provision in this case was formally repealed after it was
found invalid.16 As it is a criminal law matter, any subsequent law enacted on
this question would now be exempt from article 72 (2). But the provision in
question has not been reintroduced, and there are no currently published
plans to do so.
The Junior Professors case17 took matters one step further. The case concerned
a federal law creating a provision for junior professors to be appointed at German
universities without the previously required second doctorate (Habilitation)—a
qualification that was considered an obstacle to creating a young, vigorous,
and gender-balanced professoriate. The Court held this law invalid because it
was not supported by the federal “framework laws” power relating to universities (also, as it turned out, a casualty of the amendments of 2006)—in other
words, on standard grounds of federal legislative incompetence based on the list
of federal legislative powers. The Court also held that the provisions of article 72
(2) were not satisfied, either. The law did not promote economic unity because
the principal task of universities was teaching and research, which affected the
economy only indirectly.18 In making this distinction, the Court indicated that
it was, indeed, able to distinguish direct and indirect effects on the economy, contrary to the fear expressed in my earlier note; nevertheless, it did not say how it
had come to the conclusion that, in this particular case, the economy was
affected only indirectly. As has been seen in similar fields, for example in the
cases on the commerce clause in the U.S. Constitution,19 this is a question on
which common sense and intuition often have more bearing than rational powers of explanation.
Further, the Court held that the provision for the federation to legislate
under article 72 (2) in order to achieve equivalent living standards and maintain legal unity could not justify the new law on junior professors. The topic
would qualify as a basis of federal legislation only if living standards deviated
in a “substantial” way, which impaired the social balance of the federation, or
if such a development was becoming apparent “in a concrete way.”20 Legal
16
Gesetz, Apr. 19, 2006, BGBl. I 866, Art. 168.
17
BVerfGE 111, 226 (2004).
18
BverfGE 111, 266f. The expression chosen by the Court to express this concept was that the economy was affected only “mittelbar,” i.e., mediately (in the sense of “opposite to immediately”); borrowing a term found in other countries’ constitutional law, one might translate this as “indirectly.”
19
U.S. CONST., art. I, § 8.
20
BVerfGE 111, 253.
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Germany: A slow death for subsidiarity?
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unity per se would not be threatened by varying laws among states, as legal
differences were to be expected within a federation. Rather, there would need
to be undue interference with transactions across state borders. Finally, the
federation could, under the transitional provision in article 125a (2),21 make
adjustments to existing laws enacted before the subsidiarity principle became
justiciable even if it no longer had the power to enact the whole law in question; however, this federal lawmaking capacity was to be “interpreted
narrowly”,22 the Court held, and did not cover new ideas. The concept of
the junior professor was completely new and, therefore, not saved by this
provision.23
21
I was somewhat critical of this provision in my earlier note. Taylor, supra note 1. The defect
to which I drew attention—namely, that, absent an additional federal enactment, there was no
way of determining that new article 72 (2) had invalidated a federal law enacted before 1994,
causing its subject matter to revert to the states—was removed by the amendments of 2006. (I
make no claim of any causal relationship between these two events; this is definitely a case of
post hoc, sed non propter hoc.) Article 93 (2) now provides, in summary, that if an unsuccessful
attempt is made to enact a federal law opening a field to the states, a determination to the same
effect may be made by the Court on application by certain prescribed bodies such as a state
government. Schwarz, Die Änderungen des Art. 93 GG [Changing Art. 93 of the Basic Law], in
FÖDERALISMUSREFORM [THE FEDERALISM REFORM] 54 (Christian Starck ed., C.H. Beck 2007) (expecting
this to have some considerable effect in keeping the federal government on the straight and
narrow).
Some German scholars criticize this provision as inconsistent with the principle of separation of
powers because article 72 (2) states that a determination by the Court is to have the same effect
as a federal law opening up the area in question to state law. See, e.g., Klein & Schneider, supra
note 9, at 1555f; Nierhaus & Rademacher, supra note 9, at 392. This is, however, a confusion of
form and wording for substance. The separation of powers is more complicated, and there is no
principle that says that a Court decision cannot ever have the same effect as a formal law. One
might compare, for example, the similar effect of a court holding a law invalid and the legislature
repealing it.
The status of laws that would have been determined to be invalid under article 72 (2) in its 1994–
2006 version, but now freed from the requirement to comply with that article by the amendment
of 2006, is less certain. One commentator writes that in strictness they must still be invalid, as they
were when enacted; however, the amendments of 2006 might be taken to cure any such problem.
Arnd Uhle, Commentary on Article 72, in FÖDERALISMUSREFORMGESETZ 143 (Winfried Kluth ed., Nomos
2007).
22
23
BVerfGE 111, 226, 269 (citing Shop Trading Hours Case, BVerfGE 111, 10, 31).
For discussions of the derivation of this distinction between minor amendments and totally new
conceptions, see Josef Franz Lindner, Zur Änderungs- und Freigabekompetenz des Bundesgesetzgebers
nach Artikel 125a II GG [On the Federal Legislative Power to Alter and Release Under Article 125a II of
the Basic Law], NEUE JURISTISCHE WOCHENSCHRIFT [NJW] 399, 400f (2005); Arnd Uhle, Verfassungsnorm im Aufwind: Art. 125a GG [A Constitutional Provision of Increasing Importance: Art. 125a of the
Basic Law], DIE ÖFFENTLICHE VERWALTUNG 370, 377 (2006). Others take a critical view, see, e.g.,
Schmahl, Bundesverfassungsgerichtliche Neujustierung des Bund-Länder-Verhältnisses im Bereich der
Gesetzgebung [Re-adjustment by the Federal Constitutional Court of the Federal-State Relationship in the
Field of Legislation], JAHRB. DES FÖD. 220, 227 (2006).
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A KoMbO insider reported that this decision came as a shock to the federal side in the negotiations and gave the negotiations new impetus because
the federation suddenly became willing to make concessions in order to be
rid of Article 72 (2).24 It is not obvious why this was so, since article 72 (2)
was only partly responsible for the law’s demise. It was also doomed under
the standard subject matter tests; and the tests applied by the Court, while
reasonably exacting, are no more stringent than might be expected to exist
under a justiciable principle of subsidiarity. One cannot, after all, have a
justiciable principle that produces the same answer (in this case, favorable
to the federation) no matter what the input. Furthermore, the outcome of
the case has since been confirmed in a most striking way. The amendments
of 2006 abolished the federal framework power itself under which the
law had been enacted originally and, with it, any federal competence to
legislate on the subject in question.25 Unlike some other formerly framework fields, this power was not located elsewhere in the federal legislature’s
list of powers.26
Nevertheless, after the Junior Professors decision the federal government put
forward the idea that article 72 (2), in effect, should be made nonjusticiable
again or even repealed entirely and offered concessions to the states in return.
The states refused to accept this proposal but did accept a restriction along the
Fritz Scharpf, Föderalismusreform—weshalb wurde so wenig erreicht? [The Federalism Reform—
Why was So Little Achieved?], 50 AUS POLITIK UND ZEITGESCHICHTE 9 (2006); Fritz Scharpf, Recht und
Politik in der Reform des deutschen Föderalismus [Law and Politics in the Reform of German Federalism],
in POLITIK UND RECHT 317 Michael Becker & Ruth Zimmerling eds., Verlag für Sozialwissenschaften
(2006). See also Hans-Jörg Dietsche, Die “konkurrierende Gesetzgebung mit Abweichungsrecht für die
Länder”: Zu den verschiedenen Modellen der verfassungsrechtlichen Ausgestaltung eines neuen materiellrechtlichen Gesetzgebungsinstruments [“Concurrent Legislative Power with a Right to Deviate for the
States”—On the Various Models for the Constitutional Design of a New Means of Enacting Substantive
Laws], JAHRB. DES FÖD. 192 (2006); Rudolf Hrbek, Ein neuer Anlauf zur Föderalismus-Reform: Das
Kompromißpaket der Großen Koalition [A New Attempt at Federalism Reform: the Compromise Package
of the Grand Coalition], JAHRB. DES FÖD. 139, 146 (2006).
24
25
However, surviving federal law on the subject remains in force for a transitional period under
article 125b (1). See Bundesministerium für Bildung und Forschung [BMBF] [Federal Ministry
of Education and Research] Web site, available in English at (http://www.bmbf.de/de/820.php).
Immediately after the judgment and before the constitutional reform of 2006, the federal framework law was amended and continued to recognize the junior professorship. Gesetz zur Änderung
dienst- und arbeitsrechtlicher Vorschriften im Hochschulbereich (HdaVÄndG)[Amendment to
Administrative and Labor Regulation in Higher Education], Dec. 30, 2004, BGBl. I. But state laws
filled the gap in power revealed in the case so that junior professors continued to exist. At the time of
writing, arrangements were being made for the reorganization of the law to accommodate the new
distribution of power following the constitutional reform of 2006. See Aufhebung des Hochschulrahmengesetzes [Repeal of the Framework Law on Universities], available at http://www.bmbf.de/
de/8680.php.
26
As for the new power in art. 74 (1) (xxxiii), it suffices to state that it does not cover the area at
issue in the Junior Professors case.
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Germany: A slow death for subsidiarity?
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lines of the compromise finally enacted and outlined above, under which the
provision would be limited to certain subject areas.27 In the final documents, the
excluded subject areas were identified as those in relation to which “the federation and the states unanimously assume that federal legislation is necessary.”28
A great number of German scholars agree with the federal government in
considering the interpretation of article 72 (2) in the Junior Professors case to
have been unduly strict;29 sometimes, notably in environmental law cases, one
27
Joachim Stünker, Zur Entwicklung der Neufassung von Art. 72 II GG (Erforderlichkeitsklausel) und Art.
72 III (Abweichungsrechte) [On the Development of the Amended Version of Art. 72 II of the Basic Law (the
Necessity Clause) and Art. 72 III (the Power to Deviate)], in DIE REFORM DES BUNDESSTAATES: BEITRÄGE ZUR
ARBEIT DER KOMMISSION ZUR MODERNISIERUNG DER BUNDESSTAATLICHEN ORDNUNG 2003–2004 UND BIS ZUM ABSCHLUSS
DES GESETZGEBUNGSVERFAHRENS 2006 [THE REFORM OF THE FEDERAL STATE: CONTRIBUTIONS ON THE WORK OF THE COMMISSION FOR THE MODERNIZATION OF THE FEDERAL SYSTEM IN 2003–2004 AND TO THE END OF THE AMENDMENT PROCESS
IN 2006] 101 (Rainer Holtschneider & Walter Schön eds., Nomos 2006); Uhle, supra note 21, at 114f.
28
BTDruck 16/813, at 9. A slightly different formulation is also stated: the federation and the
states have agreed that an examination of the necessity for federal law is, in the areas excluded
from art. 72 (2), no longer necessary. Id. at 11.
29
Wolfram Försterling, Komptenzrechtliche Probleme nach der Föderalismusreform [Problems of Legislative Competence after the Federalism Reform], ZEITSCHRIFT FÜR GESETZGEBUNG 36, 60 (2007); Häde, JZ 930,
932 (2006); Hrbek, supra note 9, at 233f.; Peter Huber, Deutschland nach der Föderalismusreform—
in bester Verfassung! [Germany After the Federalism Reform—in Great Shape!], in WEGE GELEBTER
VERFASSUNG IN RECHT UND POLITIK: FESTSCHRIFT FÜR RUPERT SCHOLZ ZUM 70. GEBURTSTAG [PATHS OF LIVED CONSTITUTIONALISM IN LAW AND POLITICS: FESTSCHRIFT FOR RUPERT SCHOLZ ON HIS SEVENTIETH BIRTHDAY] 610f. (Rainer
Pitschas & Arnd Uhle eds., Duncker & Humblot 2007); Michael Kloepfer, Föderalismusreform und
Umweltgesetzbegungskompetenzen [The Federalism Reform and Legislative Power on Environmental
Matters], ZEITSCHRIFT FÜR GESETZGEBUNG 250, 256 (2006); Klein & Schneider, supra note 9, at 1551;
Wolfgang Köck & Cornelia Ziehm, Föderalismusreform: Chance für das Umweltrecht vertan [The Federalism Reform: A Lost Chance for the Environmental Law], ZEITSCHRIFT FÜR UMWELTRECHT 337 (2006);
Christian Maiwald, Die Gesetzgebungszuständigkeit im Strafrecht [Legislative Powers over Criminal
Law], ZEITSCHRIFT FÜR RECHTSPOLITIK 18, 20 (2006); Nierhaus & Rademacher, supra note 9, at 388;
Lars Rühlicke, Bericht aus Berlin—März 2006 [Report from Berlin—March 2006], JURISTISCHE AUSBILDUNG [JURA], 234, 237 (2006); Scharpf, Föderalismusreform, supra note 24, at 9; Helmuth SchulzeFielitz, Umweltschutz im Föderalismus—Europa, Bund und Länder [Environmental Protection in a
Federation—Europe, the Federal Government, and the States], NVWZ 249, 251 (2007); Rupert
Stettner, in GRUNDGESETZ KOMMENTAR: SUPPLEMENTUM 2007, 124 (Horst Dreier ed., Mohr Siebeck 2007);
Alexander Thiele, Die Neuregelung der Gesetzgebungskompetenzen durch die Föderalismusreform—ein
Überblick [The Re-Allocation of Legislative Power in the Federalism Reform—an Overview], JURA 714,
716 (2006); Thomas Würtenberger, Artikel 72 II GG: Eine berechenbare Kompetenzausübungsregel?
[Article 72 II of the Basic Law: A Predictable Rule on the Division of Powers?], 177f (Nomos 2005). For
a different view, along the lines taken here, see Otto Depenheuer, Verfassungsgerichtliche Föderalismusreform [The Constitutional Court and Federalism Reform], ZG 83, 86 (2005); Ferdinand Wollenschläger, Die Föderalismusreform: Genese, Grundlinien und Auswirkungen auf die Bereiche Bildung und
Wissenschaft [The Federalism Reform: its Origins, Bases and Effects in Education and Scholarship],
1 RECHT DER JUGEND UND DES BILDUNGSWESENS [RDJB] 8, 13 (2007). See also some of the contributors to the
conference proceedings summarized in Hans-Günter Henneke, Bestandsaufnahme der Kommissionsarbeit und Umsetzungsperspektiven für die Föderalismusreform in Deutschland [The State of the Commission’s Work and Perspectives for the Realization of Federalism Reform in Germany],
VERWALTUNGSBLÄTTER FÜR BADEN-WÜRTTEMBERG [VBLBW] 249, 251–253, 259f. (2005).
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senses a loss of scholarly detachment, attributable perhaps to the fear that
what are seen as desirable outcomes might be hindered.
One might have thought that, if anything would alarm the federal government, it would have been the earlier Shop Trading Hours case.30 As numerous
surprised visitors to Germany can testify, shop trading hours are quite limited
there; this is a result of pressures from churches and unions. The Court held
that the minor liberalization effected by a federal law was not covered by article
72 (2) because there was no reason why shopping hours should be uniform
across the country. This seems right, especially since the federal law already
authorized the states to make nonuniform exceptions. The ruling is consistent
with the Court’s test concerning endangerment of economic unity, which asks
whether a federal law is necessary to preserve the single economic area of the
Federal Republic; certainly, the latter value would not be endangered if shops
were to stay open longer in some states than others. Nor would any of the other
values mentioned in article 72 (2) be endangered.
Nevertheless, the Court held that the federal legislative adjustments were
minor and thus validated by the transitional provision in article 125a (2).
Accordingly, the gap in federal legislative power opened up by article 72 (2)
was concealed. The case is noteworthy because it held, for the first time, that
a significant federal law was outside federal legislative power by reason of
article 72 (2) alone. Again, the Court was proved correct in its estimation of
the need for federal legislation; one of the other changes made in the constitutional reform of 2006 was to exclude from federal legislative power, and
thus to return to the States, the very topic of shop opening hours, a question
which is now expressly excluded (along with others) from the federal power
over economic affairs. Since then most states have begun to legislate on the
topic, and the matter is no longer regulated uniformly,31 as indeed it need
not be.
Finally, in the Student Fees and Unions case32 the Court invalidated under
article 72 (2) a federal prohibition of student fees for first degrees and a
requirement that all universities have a student union. It held that the
former topic, at least, was covered by a federal legislative power in the ordinary subject matter catalogue but, repeating its earlier tests for the satisfaction of the limbs of article 72 (2), held that none of them was satisfied by the
prohibition on fees. This was because, for one thing, the existence of fees in
30
BVerfGE 111, 10 (2004).
31
Försterling, supra note 29, at 54f.; Hendrik Horstmann, Neue Gesetzgebungskompetenzen bei Ladenschluss und Arbeitszeit [New Legislative Powers Over Shop Closing and Working Hours], NEUE
ZEITSCHRIFT FÜR ARBEITSRECHT [NZA] 1246 (2006) (on the distinction between the topics of shop closing hours and labor law).
32
BVerfGE 112, 226 (2005). This case is also noticeable because the federation based its argument
partly on what had occurred in Australia under the Higher Education Contribution Scheme, a
model which has received quite a deal of attention in Germany. Id. at 236f.
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some states but not others would constitute a difference in living conditions
among the states but not one that either endangered the social balance of
the federation nor exceeded the differences among states to be expected in a
federation.
In relation to economic unity, the Court considered all possible economic
implications of the difference in fees in a detailed and sophisticated way. It recognized the possibility of students moving from one state to another to avoid
fees, but it considered, as well, countervailing factors, such as the possibility of
students relocating to states that used such fees to support a higher quality of
university education. The Court concluded that, in the end, the relatively modest level of fees proposed by some states (around €500) would probably be outweighed as a factor in the calculations of students by variations in living costs
from state to state. This made sense, as many of the states leading the charge
for the introduction of fees were those with higher living costs. Equally sensible
was the Court’s finding that the economic ramifications of variations in fee
arrangements among states would not endanger the existence of the single
economic area. Using similar tests, the Court also invalidated a provision for
the compulsory creation of student unions.
This was the second instance when a federal law supported by the subject
matter catalogue was invalidated under article 72 (2),33 that is, when the result
was altered by the existence and justiciability of that provision. This holding,
too, might have justified some self-interested apprehension on the part of the
federation, although, as we have seen, it was already negotiating at this stage
toward limiting the ambit of article 72 (2). The federation has since lost responsibility over this area, also as a result of the constitutional reforms of 2006, in
which student fees became a matter for the states.
4. Commentary
German constitutional law on subsidiarity is in an odd state. What purports
to be a fully justiciable requirement of subsidiarity remains, but it applies
only to what appears to be a randomly selected set of concurrent federal
powers.
Few people will be convinced by the explanation that, in relation to these
latter topics, there is always a need for federal law, and, thus, the subsidiarity
test in those areas was superfluous. There are many topics now exempted from
article 72 (2) in relation to which it is quite possible to imagine room for
improvement or experimentation by one state or another. The present situation is the product, not of rational reflection, but of a political deal—reconciling
the tension between the central government’s desire to be free of article 72 (2)
and the states’ reluctance to permit this—as part of a broad compromise
33
Recall that the Court held that the transitional provision saved the law on shop trading hours.
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package of reforms effected by the grand coalition of 2006.34 It would be naive
to dismiss the current situation as untenable or wrong solely for that reason;
realistically speaking, most constitutional law is the product of some sort of
political deal. Nonetheless, the swift retreat from article 72 (2) raises doubts
about whether subsidiarity will be accepted by German political actors as a
principle on which courts can base their determinations regarding the validity
of legislation. The questions raised in my previous note, as to whether the
Constitutional Court would be able to find the tools to enforce it,35 proved to be
unfounded; the Court has demonstrated its ability to develop case law to enforce
the principle. But my broader reasons for doubting whether the principle itself
was amenable to judicial enforcement,36 which I do not repeat here, seem perhaps to have been confirmed, unexpectedly, by the politicians amending the
Constitution. They and the bureaucracy behind them seem not to have anticipated what a powerful principle they were requiring the Court to enforce back
in 1994 and now have repented of giving the Court so much scope to interfere
in the domain of political decision making.
As I tried to show in my earlier contribution,37 there are good reasons to be
cautious about curial enforcement of subsidiarity. The economic complexity of
decisions that must be made under the banner of subsidiarity is illustrated by
the Student Fees and Unions case. Even though the Court managed reasonably
well in that case, it may be that a courtroom is not the ideal setting in which to
determine the necessity of laws that entail a great variety and uncertainty of
economic effects. The Court’s decision also leaves some open questions. For
example, it held that fees of around €500 were likely to be secondary to other
considerations, such as general variations in the cost of living among the
states, and thus not a serious barrier to equivalence of living conditions. But
what if the fees had been €5,000? At what point would fees become excessive
in light of the need to maintain equivalent living conditions, and by what formula is this determined?
Are courts equipped to answer such questions? If judicial intuition is the
only criterion, why should it be preferable to political intuition, especially if the
34
Kesper, supra note 11, at 158; Michael Kotulla, Umweltschutzgesetzgebungskompetenzen und
Föderalismusreform [Legislative Power Over Environmental Protection and the Federalism Reform],
NVWZ 489, 491 (2007) (pointing out that waste disposal was initially to be on the list; it is hard to
see any reason other than a political compromise for removing it); Stettner, supra note 29.
35
Taylor, supra note 1, at 117.
36
Id. at 126. In brief, my reasons were the large degree of political judgment necessary to decide
questions of subsidiarity and doubts about whether the Courts would be able to discharge the responsibility of enforcing a principle of such a different type from the traditional subject matter
catalogue.
37
Id. at 126–127.
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latter can be informed by economic studies and other information not available
to or assessable by courts? The democratically legitimated elected branches of
government may think, quite understandably, that such decisions are for
them.
Given that the constitutional amendments in 2006 confirmed the outcomes
of the Junior Professors, Shop Trading Hours, and Student Fees and Unions cases
by removing their subjects from federal power via amendments to the subject
matter catalogue, some might think that politicians’ tolerance for the justiciability of questions of subsidiarity is higher than I allow. Certainly, these judgments of the Court were confirmed by the conclusive means of constitutional
amendment agreed to by politicians. However, this shows merely that federal
politicians are willing to accept some decisions and outcomes, particularly
when looking for bargaining chips in negotiations with the states, thus leading
to a reshuffling of constitutional responsibilities. But the restriction of the subsidiarity principle shows that politicians, and the bureaucracy behind them,
find far less appealing the prospect of courts having a continued broad discretion to examine every statute under headings as diffuse as “subsidiarity” and
“necessity.”
In the fast-changing world of constitutional politics, the future of the
enforceable principle of subsidiarity in German constitutional law is uncertain.
I venture one prediction. Now that there are two types of concurrent powers—
those that are subject to a justiciable principle of subsidiarity and those that are
not—it may be difficult to determine where a federal law enacted under concurrent powers fits into the new arrangements under article 72 (2), that is, to
determine which powers support the law in question. In principle this should
be no more difficult than determining whether a federal law is supported by
any federal legislative power at all. However, it is easy to imagine cases in
which it is uncertain whether a piece of legislation is supported by the power
over civil law, labor law, or prevention of the misuse of economic power (which
are not subject to the subsidiarity principle) or the power over economic affairs
(which is). An example that springs to mind are various provisions in the law
of consumer protection. Furthermore, some parts of laws may fall under one
power and some under another, further complicating the situation.38 I predict,
therefore, that the federal government will soon claim that the partial subjection of its concurrent lawmaking powers to the subsidiarity principle has
38
On this complex of problems, see Degenhart, supra note 12, at 1210; Christoph Degenhart, in
GRUNDGESETZ: KOMMENTAR [THE BASIC LAW: A COMMENTARY] 1453 (Michael Sachs ed., C.H. Beck 2007);
Stefan Oeter, Die Änderungen im Bereich der Gesetzgebung [Changes in the Field of Legislation] in FÖDERALISMUSREFORM, supra note 21, at 14; Stettner, supra note 29, at 125f. Presumably the Court will
continue to insist that any provision must, in truth, be about one topic only, so that the difficulty
will not arise that one provision is simultaneously valid under two topics, one of which is and one
of which is not subject to article 72 (2). On this, see Greg Taylor, CHARACTERISATION IN FEDERATIONS: SIX
COUNTRIES COMPARED 89–92 (Springer 2006).
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caused too much uncertainty—just as it argued before 2006 that the principle
itself was too uncertain—and thus recommend the justiciability of article
72 (2) be done away with entirely. How this argument will fare will depend on,
among other things, the distribution of political power at any given time and
the course of case law in the interim.
As for the distribution of political power, the current grand coalition is an
exceptional state of affairs not expected to last beyond the next general elections,
planned for the third quarter of 2009—unless the elections produce an unexpected result. If the coalition does not survive, the new government is unlikely to
command the two-thirds majority in each house of parliament that would be
necessary to amend the Basic Law and/or article 72 (2). Thus, it may be that the
current compromise will endure longer than is justified on its merits. It would
not be the first time that an illogical compromise has endured because political
conditions made it difficult to undo, or because the question lacked urgency.
German writers tend to assume that the Court’s pronouncements on article
72 (2) will continue to be effective despite the 2006 amendment, and that the
case law will continue as before, albeit in relation to fewer laws.39 The wording
of the tests themselves as constitutionally prescribed in article 72 (2) remains
unchanged, and article 93 (1) (2a), the 1994 provision authorizing the Court
to strike down laws that do not comply with article 72 (2), likewise remains
unaltered. That being the case, one may anticipate an argument along the
lines of the common-law presumption that reenactment of a statute constitutes legislative approval of its judicial interpretations.40 On the other hand,
the Federal Constitutional Court may understand the recent constitutional
amendment as a shot across its bows and modify its practice even though the
text is unchanged. In the United States, President Roosevelt’s “Court-packing”
plan provides a notorious precedent for a far more dramatic shot across the
bows producing a spectacular about-turn, although there is no F.D.R. in sight
in Germany to provoke such a reaction there. Other questions, such as the role
of proportionality under article 72 (2), remain open.41 Litigation on such issues
may provide the Court the opportunity for some discreet backpedaling.
39
Jörn Ipsen, Die Kompetenzverteilung zwischen Bund und Ländern nach der Föderalismusnovelle [The
Division of Powers between the Federation and the States after the Amendments to Federalism], NJW
2801, 2803 (2006); Schulze-Fielitz, supra note 29, at 252; Thiele, supra note 29, at 716 (predicting an even stricter approach, but not saying why).
40
The possibility of such an argument is expressly mentioned by Schulze-Fielitz, supra note 29, at
252. I do not, of course, suggest that this would be the end of the discussion. For recent criticism of
the presumption and a reference to earlier doubts about it, see Foots v. Southern Cross Mine Management (2007) 82 ALJR 173, 189.
41
Wolfgang Rüfner, Artikel 72 (2) GG in der Rechtsprechung des Bundesverfassungsgerichts [Article 72
(2) of the Basic Law in the Jurisprudence of the Federal Constitutional Court], in STAAT IM WORT: FESTSCHRIFT
FÜR JOSEF ISENSEE [THE STATE IN WORDS: FESTSCHRIFT FOR JOSEF ISENSEE] 399f. (Otto Depenheuer et al. eds., C.F.
Müller 2007); Rupert Stettner, Case Note on the Student Fees and Unions Case, JZ 619, 621 (2005).
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If politicians had been seriously committed to the judicial enforcement of
subsidiarity, the amendments of 2006 might have attempted to fine-tune
the subsidiarity test rather than to remove it entirely across large areas of
federal power. Had it been thought that the principle of subsidiarity was
sound but that the Court was taking too strict a view of it in practice, article
72 (2) could have been revised as a signal to the Court that it needed to
moderate its approach, while leaving the areas subject to the provision
unchanged. It is not as if the Court had run riot, rendering decisive action
urgent. The judicial application of article 72 (2) since 1994 has not—at
least, not yet—made a great deal of difference to the lawmaking powers of
the federation.42 And since most of the Court’s decisions were confirmed by
the 2006 constitutional amendments, it is hard to argue that the Court has
unjustifiably limited the federal legislature’s powers, whatever disquiet its
reasoning, or anticipated potential case law, may have caused. Fine-tuning
the tests may be difficult, but it is curious that the project was not seriously
attempted.
The main practical effect of article 72 (2), as it existed from 1994 to 2006,
was to introduce an added element of uncertainty into the question of federal
competence to legislate; the outcome of a subsidiarity check is often highly
uncertain, depending on many factors, including value judgments by the person
making the decision.43 Uncertainty about the extent of federal legislative power
was one of the main reasons why the federal government was so keen to do away
with article 72 (2). However, subsidiarity is a principle that is essential to the
spirit of federalism.44 Perhaps, after all, there is only a limited commitment to
federalism in Germany; signs of this include the tendency of many citizens in
Germany to expect living conditions to vary only barely among the states,
assumptions by the bureaucracy (including the state bureaucracy) that a high
level of federal/state cooperation is natural, and a conception of federalism as an
42
There are statements to the effect that the restriction of article 72 (2) in 2006 was a massive
blow to the state governments, see, e.g., Kotulla, supra note 34; and that reported in Benjamin
Küchenhoff, Föderalismusreform—Zurück zur Kleinstaaterei? [Federalism Reform—Return to
Particularism?], NEUE JUSTIZ [NJ] 106, 106f. (2007). This assumes, of course, a wide-ranging
effect for article 72 (2), which probably would have made its deletion even more certain in
the end. As mentioned in the text, the future case law may give us some idea of what has
been lost.
43
See Oeter, supra note 38, at 12; Astrid Epiney, Föderalismusreform und europäisches Haushaltsrecht
[Federalism Reform and European Budget Law], NATUR UND RECHT 403, 409f (2006) (pointing out that
virtually any case on subsidiarity could be legitimately decided one way or the other).
44
As pointed out eloquently by former federal president and Constitutional Court judge
Roman Herzog, in Kooperation und Wettbewerb [Co-operation and Competition], 50 AUS POLITIK UND
ZEITGESCHICHTE 3 (2006). See also Huber, supra note 29, at 597, and the speaker whose opinions are
reported in Henneke, supra note 29, at 249, 260 (stating that the fate of article 72 (2) indicates the
degree of commitment to a real share of legislative power for the states even on the part of the states
themselves).
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arrangement under which—to a far greater degree than, for example, in Canada
or the United States—the states carry out centrally-made decisions.45
While Germany is a less promising setting for federalism than some other
countries (Canada, for example), the principal problem revealed by the events
summarized here is not a lack of commitment to federalism but the difficulty of
making the subsidiarity principle justiciable in a credible way. There would be
nothing wrong with the uncertainty engendered by article 72 (2)—or at least,
it would be an unavoidable evil—if it were established, clearly, that the decisionmaking power on subsidiarity questions is lodged in the correct body. But
politicians and the bureaucracy seem to have concluded that the courts are
not the right forum in which to determine such a complicated and subjective
question. That is the real meaning of the complaints of “uncertainty”—it is not
so much that the future course of decision-making is uncertain in a general
sense; that is always the case with constitutional and political questions,
regardless of who decides them. The problem is, rather, that those who believe
they should be making the determination as to the need for federal legislation
are not sure whether they are entitled to do so given the amount of decisionmaking power on that subject lodged with another branch of government.
Once the Court began to take seriously its role in this area, the legislators
accordingly divested it of power in most areas and may do away with this
power altogether in the short to medium term.
It is unfortunate that, across the board, the fully justiciable principle of subsidiarity did not receive a longer trial. More data might have emerged useful to
the scholar if the principle had been allowed to operate for some time. Moreover,
the principle might have proved beneficial to the legal system in at least some
areas of law beyond those, such as shop trading hours, in which subsidiarity’s
brief period of full application showed that a federal power could, without ill
effect, be handed back to the states. What experience we do have, however,
serves largely to confirm the doubts about whether the principle of subsidiarity
is suited to judicial enforcement.
45
Ludger Helms, Föderalismus und Bundesstaatlichkeit in Deutschland: eine Analyse aus der Perspektive
der vergleichenden Politikwissenschaft [Federalism and the Federal Idea in Germany: an Analysis from the
Perspective of Comparative Political Science], JAHRB. DES FÖD. 115, 124 (2006); Herzog, supra note 44;
Scharpf, Recht und Politik, supra note 24, at 324; Scharpf, Föderalismusreform, supra note 24, at 10;
Peter Selmer, Die Föderalismusreform—eine Modernisierung der bundesstaatlichen Ordnung? [The
Federalism Reform—a Modernization of Federal Arrangements?], JURISTISCHE SCHULUNG [JUS] 1052, 1053
(2006). One writer expressly denies that German federalism is based on the principle of subsidiarity.
Hans-Peter Schneider, The Federal Republic of Germany, in DISTRIBUTION OF POWERS AND RESPONSIBILITIES IN
FEDERAL COUNTRIES 136, 136 (Akhtar Majeed et al. eds., McGill-Queen’s Univ. P. 2006).
It should not be thought, however, that federalism has no historical roots in Germany. For an
overview and an excellent corrective, see Abigail Green, The Federal Alternative? A New View of
Modern German History, 46 HIST. J. 187 (2003).